Search, surveillance and the Urewera case

A newspaper report today has a commentator suggesting that confidence in the police will be reduced because of their handling of the investigation of what has come to be known as the Urewera terrorist case.

Until the Supreme Court decided the issue in a judgment not yet available on the usual web sites, R v Hamed [2011] NZSC 101, and which I have not yet seen, the law on whether search warrants could authorise surveillance was unclear. Differences among judges in this case reflected that lack of clarity.

As the New Zealand law Commission noted in its report "Search and Surveillance Powers" NZLC R97 2007, there are few references to surveillance powers in the statutes (see para 11.19 of the report). None of those are relevant to the Urewera case. The NZLC recommended that legislation should be formulated to clarify surveillance powers.

In the absence of a statutory or regulatory framework the courts have had to consider whether surveillance is a kind of search, and this has turned on the circumstances of each case. It was held to be not a search in a case which may still be subject to name suppression so I just give its neutral citation: [2010] NZCA 294, and also in another such case: [2010] NZCA 287. Sometimes surveillance from a neighbouring property by consent of the neighbour has been held to be lawful: R v Beri (2003) 20 CRNZ 170 (CA), and R v Robertson [2009] NZCA 154. And sometimes surveillance has been held to be a search: R v Gardiner (1997) 15 CRNZ 131 (CA). In other cases the courts have held that it was unnecessary to decide whether surveillance is a search because the issue of the admissibility of the evidence turned on the balancing exercise used at common law and which is now enacted in s 30 of the Evidence Act 2006: R v Fraser [1997] 2 NZLR 442, R v Peita (1999) 17 CRNZ 407.

The actions of an undercover officer approaching the defendant's door and secretly making a video recording of the ensuing events has not been held to be a search: R v Smith (Malcolm) [2000] 3 NZLR 656 (CA), although in the possibly suppressed case mentioned above, [2010] NZCA 287 the Court of Appeal noted that opinions may differ over whether this was a search, so it determined the admissibility of the evidence on reasonableness and balancing grounds.

Where the police obtained a search warrant and installed video surveillance equipment, the Crown conceded that that was illegal, however the Court of Appeal doubted whether that concession was correct: (another possible name suppression case) [2010] NZCA 457.

So even right up to the Supreme Court's decision in the Urewera case the law was unclear as to whether surveillance was necessarily a search. The point was if surveillance was a search, it could be authorised by a search warrant. If it was not a search and could not be legitimised in that way, and if it involved a trespass the admissibility of evidence obtained by such surveillance was governed by the balancing exercise in s 30. In the Urewera case, the High Court held that surveillance could not be authorised by a search warrant, but the Court of Appeal overruled that decision. The Supreme Court overruled the Court of Appeal on this point. It also overruled the Court of Appeal and the High Court on the admissibility of some of the evidence where it related to less serious charges.

[Update: as it turned out, the Supreme Court's analysis of search was more subtle than this. It differentiated between a narrow form of search that could be authorised by a warrant - search for things that existed at the time the warrant was executed, where "things" did not include captured images - and the wider form of search that was addressed in s 21 of the Bill of Rights. Covert surveillance is a search when it infringes reasonable expectations of privacy, but it cannot be authorised by a search warrant. There could be an unreasonable search without a trespass: Blanchard J at 57, 63, 64 of [2011] NZSC 101, another aspect of which is discussed here tomorrow.] 
 
My impression from media reports as the case has made its rather slow way through the courts is that the police acted in good faith in their approach to collecting the evidence. I don't see any reason for the public to lose confidence in the police over this aspect of the case.

A small collection ...

No compensation for judicial breach of rights

If a judge breaches your rights under the Bill of Rights, you may not claim compensation: Attorney-General v Chapman [2011] NZSC 110 (16 September 2011) per McGrath and William Young JJ jointly with Gault J concurring. Elias CJ and Anderson J dissented.

The majority reasoning emphasised public policy which was an extension to the personal immunity of judges from suit and was based on the need to protect judicial independence.

Eyewitness identification evidence

An illustration of circumstances where there was insufficient support for the reliability of identification by an eyewitness who claimed in a fleeting sighting to recognise the defendant from two encounters several years previously (there being no evidence about why those should have made the present identification more reliable), so that the requirements of s 45 of the Evidence Act 2006 were not met, is Harney v Police [2011] NZSC 107 (16 september 2011). The Court emphasised the need for strict compliance with s 45 in view of the dangers of mis-identification. Dock identifications too should be permitted only in the most exceptional circumstances [20 at footnote 20]. The witness's confidence in the accuracy of his own identification is just a factor to be taken into account, as the opposite side of the coin of hesitancy, and confidence cannot itself satisfy a reliability test [33].

Mootness and ordering judge alone trials

Occasionally an appellate court may hear and decide an appeal notwithstanding that the issue in question no longer is a live one in the case: Signer v R [2011] NZSC 109 (16 September 2011), applying R v Gordon-Smith [2008] NZSC 56 (its substantive point discussed here on 23 March 2009) and see also R v McNeil [2009] SCC 3 discussed here on 20 January 2009).

The substantive point in Signer concerned the interpretation of s 361D of the Crimes Act 1961. Does the word "likelihood" in subsection 3(b) mean that a judge must find it "probable" that jurors will not be able to perform their duties effectively? Or does it just mean that the judge considers there is an "appreciable risk" of that? The Supreme Court held that "likelihood" imports a balancing exercise and does not set down a specific standard. The accused's right to a jury trial may be outweighed by the need for a fair trial. Beyond saying that, the Court preferred not to explore the matter without a live issue which would provide specific circumstances for consideration.

More on Momcilovic

I should, so as not to appear lazy, add a few observations on the aspects of R v Momcilovic (last entry) concerned with interpretation.

It is not unusual to find in Bills of Rights provisions to the effect that rights shall only be subject to such limitations as are justified in a free and democratic society. Section 32(1) of the Victorian Charter of Rights and Freedoms is an example. So too is s 5 of the New Zealand Bill of Rights Act 1990. The question is, are these provisions to be used in defining what the rights mean?

In Momcilovic the minority (French CJ, Crennan and Kiefel JJ) answer was no, s 32(1) is just a mechanism by which the court can decide whether to issue a declaration that the legislation in question inconsistent with the rights. However the majority (and I recall Dworkin's comments on the weights that might be given to individual judge's votes: Justice for Hedgehogs, pp 484-485) did use the rights-limiting provision as interpretive: Gummow J at 166-168, Hayne J agreeing at 280, Heydon J at 411-427, and Bell J at 678. Similarly, but where the New Zealand BORA does not give the courts power to make declarations, s 5 has been held to be interpretive, to be used to determine what the right means: Hansen v R [2007] NZSC 7 per Blanchard, Tipping, McGrath and Anderson JJ (57-60, 89-92, 186, 190-192), but with Elias CJ dissenting at 6, 7, 15-24. The Chief Justice's dissent takes the approach which was favoured by the minority of the High Court of Australia in Momcilovic.

But even this interpretive role in the New Zealand approach is not necessarily applied. For example, in Morse v Police [2011] NZSC 45, discussed here on 6 May 2011, only McGrath J used it.

The interpretive method, outlined by McGrath J in Hansen at 192, applies the following steps:

1. Ask first whether the circumstances fit within the ordinary meaning of the statutory provision being applied. Here, which standard of proof would be a natural interpretation of the reverse onus provision?
   
2. Then ask whether, on that meaning there appears to be an inconsistency with a protected right. Here, is the legal burden on the defendant inconsistent with the right to be presumed innocent?
   
3. If there is such an inconsistency, ask whether the limit on the right is a justifiable one in terms of s 5. Here, is the legal burden on the defendant justifiable?
   
4. If the limit is not justifiable, ask whether there is another meaning available through which the statute can be read consistently with the right. Here, can the reverse onus provision be read in a way that puts an evidential burden on the defendant?
   
5. If there is no such other meaning, the natural meaning must be applied. Here, the legal burden on the defendant.
   

For the fourth step, which is interpretive, the powers given by the relevant interpretive provision must be considered. Is the court limited to applying the ordinary and natural meaning of the legislation, or can the court apply a meaning that "can be given" to the enactment, or thirdly, is the court allowed to be more imaginative and strain the words of the statute to preserve the relevant right? In Momcilovic French CJ, Crennan and Kiefel JJ applied the ordinary rules of statutory construction, including the principle of legality, to determine the meaning of the reverse onus provision. This was the first of these interpretive approaches, although these judges were denying that the rights limiting procedure was relevant and were in effect just using step 1. Accordingly, no straining for an unnatural but rights-consistent meaning was permitted. There was no asking what might be reasonable limits on the right to be presumed innocent. But the minority agreed with the majority that the construction contended for by the defendant was not available on ordinary principles of statutory interpretation: to "satisfy" the court means more than merely to raise a reasonable doubt.

It is well worth reading French CJ's judgment in Momcilovic at 37-51 for a comparison with the approach in applying s 3 of the Human Rights Act 1998[UK], in particular at 49:

" ... Section 3 of the HRA has a history and operates in a constitutional setting which is materially different from that which exists in Australia. Before its enactment, United Kingdom courts, which had to give effect to the supremacy of European Community law, lacked domestic legislation providing for the direct application of rights under the ECHR. In the result there was a perception that British judges were denied the responsibility of safeguarding Convention rights and that the European Court of Human Rights had become "in effect a supreme constitutional court of the UK."[Footnote 97: "Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 12 [1.34]."] The HRA was enacted under the political rubric of "bringing rights home"[Footnote 98: "Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 12-15 [1.35]-[1.46]."]."

Perhaps this is a clue for anyone who, like me, is perplexed about why s 3 of HRA should be given a different meaning to s 6 BORA, as it was in Hansen and Lambert, as was mentioned in yesterday's note. The UK enactment applies the provisions of a Convention, whereas the NZ one is technically just an ordinary statute. In the absence of some sort of rationale like this, one is left with the thought that there is a bit of judicial pride being protected.


The UK interpretive approach is of the third kind mentioned above: some straining for a rights-compliant meaning is allowed (Ghaidan v Godin-Mendoza [2004] UKHL 30 noted here 19 September 2005), the New Zealand and Australian approaches are of the second kind.

And for a wee caustic-to-the-point-of-being-truthful glimpse of how the law works, see Heydon J in Momcilovic at 455.

Reverse onus provisions and the presumption of innocence

A reverse onus provision is one that puts a burden of proof on the defendant. It raises questions about what standard of proof is required to meet that burden. Illustrations commonly occur in legislation concerning drug offending.

For example, s 6(6) of the Misuse of Drugs Act 1975[NZ] applies when a person has been proved to have been in possession of a specified quantity of a drug, and it operates by creating a presumption that the person had the purpose of supplying it, "until the contrary is proved". This has been held to mean that the defendant has the legal burden – that is, to the standard of the balance of probabilities – of proving absence of that purpose: Hansen v R [2007] NZSC 7. The Supreme Court held that "proved" means proved on the balance of probabilities, and it rejected an interpretation of "proved" which was that it means the burden of raising a reasonable doubt, that is, the evidential burden. For my earlier commentary, see 13 January 2010, 5 March 2009, 20 February 2007, and 19 September 2005.

This latter, rejected, interpretation of "proved" was based on a suggestion by Glanville Williams in "The Logic of 'Exceptions'" [1998] CLJ 261, 265. I had relied on that article in making submissions (also rejected) to the New Zealand Court of Appeal in R v Phillips [1991] 3 NZLR 175. In that case, Cooke P for the Court found that interpretation of "proved" a "strained and unnatural interpretation".

The House of Lords did not find it "strained and unnatural" in R v Lambert [2001] UKHL 37, and indeed at [42] Lord Steyn said:

"In Kebilene [ [2002] 2 AC 326 ] I described this as a respectable argument: 370G. Lord Slynn agreed: 362A. Lord Cooke of Thorndon regarded the distinguished author's view as a possible meaning under section 3. Specifically, Lord Cooke stated that "unless the contrary is proved" can be taken to mean "unless sufficient evidence is given to the contrary" [2000] 2 AC at 373G. I respectfully adopt Lord Cooke's observation. Applying section 3 I would therefore read section 28 (2) and (3) as creating an evidential burden only. In particular this involves reading the words "prove" and "proves" as meaning giving sufficient evidence."

So, something about s 3(1) of the Human Rights Act 1998[UK] allowed Lord Cooke (who was the same person as Cooke P in Phillips) to accept the Glanville Williams interpretation of "proved", whereas the corresponding provision of the New Zealand Bill of Rights Act 1990, s 6, had allowed neither him nor the Court in Hansen to accept it.

Much can turn on the interpretive directions given by the constitutional legislation.

The same submissions about the reverse onus were made in Momcilovic v R [2011] HCA 34 (8 September 2011). The wording of the reverse onus provision here was different and was held to be unambiguous, in that it requires the defendant to "satisfy the court" of the specified matter. "Satisfy" has always been understood to mean to establish on the balance of probabilities. See French CJ at 62, Crennan and Kiefel JJ jointly at 581 and Bell J at 659. That applied to proof of possession of the drug. But as to possession for the purpose of trafficking, the legislation did not impose a presumption and so the possession and the purpose had to be proved by the prosecution to the standard of beyond reasonable doubt: French CJ at 72, Gummow J at 200 (Hayne J agreeing at 280), Crennan and Kiefel JJ at 611 and Bell J at 659.

Momcilovic is, in addition, full of dicta of interest to those who are concerned with the Australian constitutional legislation.

For the curious ...

To begin the eighth year of this site, I reflect on the rewards and pleasures of scholarship, here.

Scientific research on eyewitness identification evidence

Every criminal law practitioner and judge should read the amicus brief filed by the American Psychological Association in Perry v New Hampshire (cert granted, No 10-8974). It refers to research on the risks of errors in eyewitness identification evidence, and on the utility of judicial warnings to juries.

(Thanks again to Peter Tillers of Cardozo School of Law at Yeshiva University for pointing this out.)

Now we are seven

That's seven years of this blog!

Usually I mark the anniversary by some repulsively self-indulgent boasting, smugly superior conceit or obnoxiously vain self-citation.

Not this time.

The relevance of expert opinion

Thanks to Peter Tillers in New York for drawing our attention to a High Court of Australia decision which includes discussion by Heydon J of an interesting point about expert evidence: Dasreef Pty Ltd v Hawchar [2011] HCA 21 (22 June 2011).

The joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ did not analyse the issue in a way that made it necessary to address the point I will mention below (41), because these judges decided that in this case the testimony offered as expert opinion was not based on the witness's specialised knowledge based on training study or experience. That requirement for admissibility being absent, they held that the trial judge had no evidence to support the conclusion he reached.

Heydon J, on the other hand, was of the view that the evidence legislation, although silent on the point, did leave room for its application. So what was the point? It was: is it necessary that there be evidence of facts upon which it is proposed that an expert should base an opinion, before the expert gives evidence of that opinion? Or, can the expert be called and give evidence of that opinion, on the understanding that evidence will subsequently be called to establish the relevance of that opinion? At 121-127 Heydon J explains why there should be a rule that relevance be established before the expert evidence is adduced.

It seems that the legislation in New Zealand leaves open the possibility that the rule favoured by Heydon J may not apply: s 25(3) of the Evidence Act 2006. Also, s 14 provides for provisional admission of evidence.

This would surely be a matter for the judge's discretion, and would depend on how practical it would be to deal with expert evidence that had been given but which was subsequently found not to be admissible. In judge alone trials it would not be likely to matter, but in jury trials questions of fairness may arise if there was a real risk that the jury would be rendered partial as a result of having heard the inadmissible evidence.

Legal aid eligibility and fair trial requirements

At a time when we are considering the implications of restricting the availability of legal aid, the Supreme Court of Ireland reminds us that the constitutional right to a fair trial may require legal aid to be granted, even where a defendant is not at risk of imprisonment: Joyce v DJ Brady [2011] IESC 36. O'Donnell J, for the Court, observed [13]:

" ... for a person who has never appeared in court before and who faces the possibility of conviction for theft an offence of dishonesty with all that that entails for prospects of employment, I do not think it could be considered anything other than serious.

"[14] It is worth considering what would be involved in a professional defence of the case. It would be necessary to know that the offence itself was indictable but could be tried in the District Court but only with the agreement of the accused. It would be necessary therefore to form some view as to which court would be the most desirable from this accused's point of view. If the matter was to proceed in the District Court it would be also necessary to know that an application could be made for disclosure which might inform the accused of the case which he had to meet. It might also be necessary to know the extensive law that has grown up in recent years about the significance of CCTV evidence, and more particularly, its absence. Careful consideration would have to be paid, to both the legal and factual basis upon which it could be said that the actions of the two women in the Spar shop could be attributed to the applicant. In addition to all of these steps a lawyer would have to consider what witnesses would be available for the defence. Leaving aside the statutory formula for one moment, if the sole question for a court was whether anyone would think this was the sort of case that could be fairly defended by a litigant on their own whilst suffering perhaps from that "fumbling incompetence that may occur when an accused is precipitated into the public glare and alien complexity of courtroom procedures, and is confronted with the might of a prosecution backed by the State" (State (Healy) v. Donoghue [1976] I.R. 325, 354), then there could in my view, be only one correct answer."

...

"[16] ... The constitutional right, from which an entitlement to legal aid for impecunious defendants was deduced is, primarily, the right to a trial in due course of law guaranteed by Article 38 of the Constitution. That is a right to a fair trial; it cannot be reduced to a right not to be deprived of liberty without legal aid. There is something fundamentally incongruous in the contention that a trial for theft would be unfair if the accused was convicted (perhaps having pleaded guilty) and sent to jail for even a day, but that a trial of the selfsame offence including the same facts and issue of law would become fair if the accused were only fined or required to do community service if convicted, even though such conviction would brand him a thief."

...

"[20] ... given the unpredictability of court proceedings, and the fact that the full facts may emerge if at all on a full trial, then unless the test as to whether an accused might face a risk of imprisonment were applied with considerable flexibility there could be a serious risk of confusion, error, waste of time and, not least, injustice."

If legal aid is not available to a defendant who wants legal representation but who cannot, in reality, afford to pay a lawyer, fair trial requirements may prevent a conviction. See Condon v R [2006] NZSC 62, discussed here on 24 August 2006, and other cases under the heading "Counsel" in the Index to this site.

Financial criteria limiting the availability of legal aid cannot justly be applied inflexibly. The real cost of private legal representation must be weighed against a defendant's actual disposable income. This is not to say that legal aid should be a gift, as arrangements can be made for reimbursement of state funding by the defendant on an instalments basis.

Evidence of vulnerable witnesses – pre-trial recording

Only rarely will it be appropriate for a court to permit pre-trial recording of the evidence, including cross-examination, of a vulnerable witness: R v M (CA335/2011) [2011] NZCA 303 (9 August 2011, published in redacted form 19 August 2011).

The judgment discusses the reasons for and against this procedure and concludes that it would take a compelling case to overcome the disadvantages. Those disadvantages include the increased use of court resources and time, the increased costs in all counsel having to prepare twice, greater delays for accused persons as the reasons favouring fast-tracking of child sex cases would no longer apply and there would be ongoing stress for family members.

And, more generally, the defence is not required to show its hand before trial and forcing it to do so could adversely affect fairness of the trial, the judge would need to be sure that full disclosure had been made to the defence before pre-recording of cross-examination, the sole advantage to complainants would be the reduction in delay before giving evidence, the jury could not properly assess the spontaneous reaction of the defendant to the complainant's evidence, the jury would not be able to ask questions of the complainant unless he or she was required to attend at the trial, and it is highly likely that such attendance would be required in the interests of fairness if it were claimed by the defence that new topics for cross-examination had arisen from information obtained after the pre-trial recording had been completed.

Extradition, separation of powers, abuse of process and the Westminster model

Extradition can be opposed on abuse of process grounds: Fuller v Attorney-General (Belize) [2011] UKPC 23 (9 August 2011) at [58]. The relevant sort of abuse of process would be [5]:

"(i) making use of the process of the court in a manner which is improper, such as adducing false evidence or indulging in inordinate delay, or (ii) using the process of the court in circumstances where it is improper to do so, as for instance where a defendant has been brought before the court in circumstances which are an affront to the rule of law, or (iii) using the process of the court for an improper motive or purpose, such as to extradite a defendant for a political motive."

An application for habeas corpus may be granted and a stay ordered. In the absence of an express constitutional provision to the contrary, it is a characteristic of democracies in the Westminster tradition that separation of powers places in the hands of an independent and impartial judiciary the protection of fundamental human rights [38-41]. The decision on whether extradition would be an abuse of process is not therefore one exclusively for the executive to make.

To retry or not to retry, that is the question

A strong legal system will ensure a fair trial for a defendant who is obviously guilty of a serious crime. R v Maxwell [2010] UKSC 48 (judgment given on 20 July 2011) is centred on the tension between the court's need to have its proceedings untainted by police misconduct and the need to uphold the public interest in conviction of the guilty.

After the Criminal Cases Review Commission had exposed serious police misconduct in the collection of evidence against the accused, the Court of Appeal quashed his conviction for a particularly vile murder. However, while he was serving his sentence and when his conviction was being investigated the defendant made admissions which supported an inference of guilt. The Court of Appeal decided to order a retrial because of this new evidence. That decision was appealed to the Supreme Court.

Were the new admissions tainted by the police misconduct that had led to his conviction and sentence?

The Court split 3-2 on this.

The problem of when events have moved on sufficiently from police misconduct to leave untainted any evidence subsequently discovered often arises in the context of improperly conducted searches. See for examples, R v Wittwer, discussed here on 6 June 2008, Gafgen v Germany, discussed here on 3 July 2008 and again on 25 June 2010, R v Ogertschnig and Police v Chadwick both discussed here on 26 October 2008.

The difference between the judges in Maxwell turned on whether the "but for" test was conclusive: if the admissions would not have been obtained but for the impropriety, they are tainted. Or was this just one matter to be considered in the balance?

You might think it obvious that since Mr Maxwell was in prison serving a sentence that had been imposed as a result of a substantial miscarriage of justice which was of such a magnitude that a stay of proceedings could have been granted ([11]) to prevent an abuse of process, his admissions were tainted.

When judges are resisting coming to a conclusion that should be obvious, they tend to call the case a hard one. A cynic might say it wouldn't be hard if they got it right. Lord Dyson repeatedly referred to this case as difficult, and Lord Rodger also noted the Court of Appeal’s difficult decision, Lord Mance didn’t find it an easy case, but Lord Brown dissenting didn’t find it difficult at all ([105]). Lord Rodger acknowledged that he had changed his mind since the hearing; had he not done so, the result of this appeal would have been different.

From this you can guess that the majority held that the admissions were not tainted and that the Court of Appeal had rightly ordered a retrial. Lord Dyson delivered the leading judgment in which he reasoned that the admissions were voluntary and were made in what Mr Maxwell then perceived to be his own interests [26]. So, while they would not have been made but for the tainted proceedings, there were other relevant factors to take into account. Only one [31] was mentioned here: the seriousness of the offending (but Lord Brown at [104] adds the strength of the case against the defendant as another). Lord Dyson also accepted that the Court of Appeal was right to think that the admissions were untainted in the sense that the police did not intend to obtain them when they were indulging in the serious misconduct [32].

This reasoning seems a bit fragile. Lord Dyson also thought that there are two balancing exercises: a narrow one to decide whether there had been an abuse of process, and a wider one to decide whether to require a retrial [21]. But, you might think, a retrial would be pointless if the evidence was inadmissible on abuse of process grounds, and if the abuse was not sufficient to exclude the evidence, how could there be an objection to a retrial? Wasn't Lord Brown right to say [98] in his dissent that it is really all one question of balancing the conflicting public interests of convicting the guilty on the one hand and maintaining the rule of law and the integrity of the criminal justice system on the other?

The result is fact-specific, and Lord Brown recognised [103] that if Mr Maxwell had made his admissions after his conviction was overturned there would have been no objection to a retrial.

Lord Collins, also dissenting, added [115] that a retrial was inappropriate because of the seriousness of the police misconduct, the fact that the admissions would not have been made but for the conviction so procured, and Mr Maxwell had served a substantial sentence.

Well, you can't say it isn't an interesting case. There are some useful summaries of the law on stays of proceedings [13–14], abuse of process [15-16], and of course the interests of justice in relation to deciding whether to order a retrial. The Court did not find it necessary to consider whether the duty to stay proceedings to prevent abuse of process where evidence had been improperly obtained is rightly conceived as a balancing exercise involving the seriousness of the offending: see my discussion of Warren v Attorney-General of the Bailiwick of Jersey on 31 March 2011. Where a stay would, as here, have been appropriate at trial, the court is saying that regardless of whether the defendant is guilty, the official impropriety was so serious that mere exclusion of tainted evidence would be insufficient to uphold the administration of justice. The admissibility decision does take into account the seriousness of the offence, but here the court says the impropriety has outweighed that. In such circumstances, subsequent discovery of new evidence of guilt would be irrelevant. Existing statutory provisions empowering courts to permit retrials of acquitted persons do not apply where stays have been ordered, nor do they require the seriousness of the offence to be taken into account, partly because they only apply to serious offences or to all offences where an acquittal was obtained by the defendant's perversion of the course of justice (obviously I generalise here: check your own statutes).

The misconduct here was indeed something rotten in the state of England. Like the ghost it craved justice but the new day brought new concerns

" ... It lifted up its head and did address

Itself to motion like as it would speak;

But even then the morning cock crew loud,

And at the sound it shrunk in haste away

And vanish'd from our sight."

Substantive and procedural fairness

Procedure is the means by which the law is brought to life. It converts words to actions. The law recognises a right to a fair trial, and this is a substantive right. To convert fairness from a right to a reality, rules of procedural fairness have developed. These rules will be effective to the extent that they produce trials that are substantively fair.

We need to know what a fair trial is in substance, and by what procedure to get it. The scope of a court's inherent power to create procedures that have implications for trial fairness was considered in Al Rawi v The Security Service [2011] UKSC 34 (13 July 2011). Note the helpful summary provided in the link at the top of the judgment.

This case concerned an extension to the Public Interest Immunity procedures (as to which see R v Davis [2008] UKHL 36, noted here 19 June 2008) which is called the "closed material procedure". This would go beyond PII by allowing the judge to see - and to decide the case on - material not shown to a party, and by allowing judgments to be given that were similarly not disclosed. The Supreme Court held (I generalise here and so am a little inaccurate in the interests of brevity) by a majority that only the legislature could create procedures that departed from the fundamental principles of open justice and natural justice.

While the Court recognises the power of Parliament to make procedural laws that limit the open justice principle and the natural justice principle, does it concede that the courts would require proceedings to continue if those laws had the effect in a particular case of making the trial substantively unfair? Would there be a difference in this between criminal and civil cases?

(20 marks)

Changing perceptions of fairness

The law seems to move rather slowly for poor people in Trinidad and Tobago, if Krishna v The State (Trinidad and Tobago) [2011] UKPC 18 (6 July 2011) is anything to go by. The murder occurred on 26 May 1984, the conviction at trial was on 12 January 1988, the appeal to the Court of Appeal was dismissed on 5 October 1995, and the Privy Council quashed the conviction, refusing to order a retrial, just the other day.

The case is a lesson in how perceptions of trial fairness can change over time. The trial seems to have been conducted according to the law as it then was as far as a direction to the jury on the reason the judge had ruled a confession admissible was concerned. The judge told the jury that he had decided that the statement had been made voluntarily. The law on this changed subsequently, so that it is no longer proper for the judge to reveal to the jury a decision on admissibility: Mitchell v The Queen (Bahamas) [1998] UKPC 1; [1998] AC 695. This was therefore an error relevant to this appeal.

Another ground of appeal was the failure of the judge to give a proper accomplice direction. The Court of Appeal had applied the proviso on this point, but the Board considered this to be a material irregularity in the context of the judge's positive comments about that witness. The law on accomplice directions had been established in Davies v Director of Public Prosecutions [1954] AC 378, so this is not a point about changing perceptions of fairness. 

A third ground of appeal was that the judge had not given an adequate good character direction. The Board considered that on its own this would not have been sufficient to shake the safety of the conviction, and that because this was not a case where the defendant had given evidence and put his credibility against that of other witnesses, it would ignore this ground. But significant for my point about changing perceptions of fairness is the increased importance of good character directions that was established in developments in the law after this trial: R v Aziz [1996] AC 41. Had the trial occurred after Aziz, a stronger good character direction would have been required, although in this case its absence may not have been decisive (compare Brown v R (Jamaica) noted here 21 April 2005; Gilbert v R (Grenada) noted here 29 March 2006).

Mr Krishna was ordered, after 23 years in custody as a sentenced prisoner, to be immediately released:

"Strong though the evidence against the appellant was, the Board is unable to conclude that the jury would have inevitably convicted the appellant if these irregularities had not occurred."

Will there be an award of compensation? Better not to hold one's breath. Clearly the trial had been unfair, because it could not be said that the jury was impartial: the judge's comments on voluntariness indicated a preference for the police witness's credibility, and lack of an accomplice warning also told against impartiality. Given that the trial had not been fair, the conviction could not stand. The Board's comments on the strength of the case against the appellant were made in the context of whether to order a new trial, and as one was not ordered, compensation would be appropriate even under the meanest regimes; see my discussion of compensation here on 15 May 2011.

When time is broke ...

"What is dawn in the city to an elderly man standing in the street looking up rather dizzily at the sky?"

This sentence from the penultimate paragraph of Virginia Woolf's work of consummate genius, "The Waves", has been with me since I first read it in the '70s. So has Shakespeare's wonderful

"I wasted time, and now doth time waste me."

Time's measurement has in the last six weeks caused ructions in the United Kingdom, where the legislature is set to uphold a practice which was based on a misconception about time. An interpretation of provisions allowing the police to detain suspects for questioning for no longer than a specified period, which could be extended, had been followed without judicial consideration for over 20 years. Then someone said, just a minute, is this legal, what does the statute mean? It did not mean what it had been assumed to mean: R (On the Application of the Chief Constable of Greater Manchester Police) v Salford Magistrates' Court [2011] EWHC 1578 (Admin).

The legislature seems eager to establish the position as what the police had thought it to have been rather than what it probably seemed to the original enactors to have been. The police snap their fingers, and the legislature obeys.

In a general sense, the interpretative dispute was over whether time should be measured as if it flows continuously from a specified moment, or as if it is a series of discrete periods which are to be considered in their aggregate.

The kind of people who are reminded by this of passages from Virginia Woolf and Shakespeare will also remember that Zeno's arrow paradox cautions us against the perils of dividing time, while his tortoise paradox shows that division of events can also be problematic.

Don’t let me spoil this one by quoting ...

There are rare moments when a brilliant judgment makes others look vapid and pathetic. So it is with Judge Bonello's roasting of the House of Lords and of the United Kingdom government's arguments in Al-Skeini v United Kingdom [2011] ECtHR 1093 (7 July 2011). Even the Grand Chamber judgments with which he concurred seem inept by comparison, fumbling with a subject which he has firmly in his grasp. Compulsory reading for anyone who would be an advocate or a judge.

Sorts of fairness: abuse of process, plea bargaining and the stay of proceedings

There is something unsettling about R v Nixon, 2011 SCC 34 (24 June 2011). It is the possibility that an issue of trial fairness may be determined by a balance between societal interests and individual concerns.

The conceptual scheme that allows this possibility was set out in the Court's judgment, delivered by Charron J, at [33-42]. The first point is unexceptional: there are two categories of abuse of process – those which concern trial fairness, and those which raise the integrity of judicial process [36]. The unsettling thing comes next [38]:

" ... Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process."

Nixon had nothing to do with trial fairness (this was hesitantly – because of lack of clarity in the submissions - recognised at [55]). It was about what can be called public policy fairness: whether in this case a plea bargain could be rejected by a more senior prosecutor. That sort of fairness does indeed involve a balance between societal interests and individual concerns. Instead of calling it public policy fairness, you could call it "the proper and fair administration of criminal justice" as Charron J does at [63]. My impression is that the conceptual framework that emerged from the precedents relied on in Nixon wrongly equates substantial fairness with administrative fairness.

The placing of trial fairness (that is, not public policy fairness) in the first category of abuse of process and within the balancing exercise was purportedly illustrated at [39-40] by reference to a case concerning whether requiring the defendant to undergo a third trial after two juries had failed to agree was an abuse of process. That case, R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, was really about public policy fairness. There was no suggestion that a third trial there would not itself be a fair trial.

It is easy to confuse trial fairness with public policy fairness. I suggested that the Privy Council did this in Boolell v The State (Mauritius) [2006] UKPC 46, noted here on 18 October 2006.

Canada recognises that the defendant's right to a fair trial is an absolute right, not subject to balancing: for example R v Ahmad, 2011 SCC 6, discussed here on 22 February 2011. This makes the framework of analysis set out in Nixon rather misleading.

Aside from that difficulty, Nixon makes some useful points about the scope of prosecutorial discretion and its relationship with the court's duty to prevent an abuse of process.

I should add that while a balancing of competing interests will determine whether public policy supports a finding of abuse of process, a balancing of competing interests will not determine whether a trial was or would be fair. Yes, balancing of subsidiary rights may be required in order to resolve an issue, but once that balancing is done the result must be assessed for compliance with the defendant's right to a fair trial. An illustration is R v H [2004] UKHL 3, at [36], concerning whether a trial could be fair without disclosure of the identity of a witness.

Furthermore, abuse of process as originally conceived was thought to cover a relatively narrow field of wrongs, but it has since been recognised that it is a more general concept. Once one adds within its scope the issue of trial fairness, this extended application is evident. Any substantial miscarriage of justice can be said to have caused trial unfairness and so be an abuse of process. That includes anything that would give rise to a successful appeal against conviction. More interesting is the choice of remedy once such an error has been identified. Can it be put right by a warning to the jury? Should it result in exclusion of evidence that otherwise would have been admissible? Or, most drastically, should the proceedings be stayed? Different forms of decision process apply to the choices. When a judge has to decide whether to warn a jury, or to exclude evidence, the decision is reached by the well known weighing of probative value against risk of illegitimate prejudice. When the choice is between warning the jury and staying the proceedings, the decision turns on whether there would be an unacceptable risk of an unfair trial, and that is not a balancing exercise. When the choice is between excluding tainted evidence and staying the proceedings, the decision is one of public policy balancing. I have discussed this in more detail in "The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings".

What price access to justice?

Today our new Legal Services Act 2011 comes into force, just as we are digesting Lady Hale's Sir Henry Hodge Memorial Lecture, "Equal Access to Justice in the Big Society". There is thoughtful comment on this lecture at UKSCblog on 30 June 2011 by Anita Davies.

Our legal aid system is said to cost too much, and the government seeks to reduce what it calls a "$402 million dollar gap in the legal aid budget".

Of course this "gap" is the difference between what provision of legal aid has actually cost and what the government would like it to cost. It is, if you like, a budgeting aspiration. If we were a wealthier country, the cost of legal aid would be of no concern. I state that truism to emphasise that the government's concern is fiscal.

I am just focusing on the money here because it is singled out as a government goal. Other goals have been addressed in the new legislation, and these concern the quality of legal representation. There is nothing wrong with that. One of the ways by which the government intends to improve the quality of legal representation is by increasing the quantity of criminal work handled by officers of the Public Defence Service. Again, I see nothing wrong with that. In fact I think it is a miracle that someone persuaded the previous government that public money should be spent on training lawyers.

One of the sources of legal aid costs in criminal cases is, as Lady Hale points out, the large amount of work that is required of lawyers at the early stages of even cases that are not particularly serious. Case management and its associated workloads have not proven to have saved money.

On the other hand (this is me again, not Lady Hale) there seems to be no shortage of lawyers who are willing to do legal aid work. The obvious cost-saving strategy would be to decrease legal aid rates of pay. This would deter some lawyers from any involvement with legal aid, but new lawyers would step in to fill this "gap". They would, thanks to the quality of representation safeguards, be fit for the job. Theoretically anyway.

That would satisfy people who think lawyers earn too much money. Perceptions of lawyers' pay are probably exaggerated by the publicity given to some extreme examples. But even those lawyers who have received large legal aid remuneration have worked very hard for it. Against the median pay received by legal aid lawyers, once outliers are ignored, one would have to weigh the time spent, the stress of the work, the office overheads, and the risks of complaints of negligence made by disaffected former clients, before deciding whether lawyers are paid too much.

The real problem may be that the government has an unrealistic expectation of how small the budget for legal aid can be.

Deterrence or rights protection: why exclude improperly obtained evidence?

Davis v United States (2011) USSC No 09-11328, 16 June 2011 emphasises the rationale for declining to exclude evidence obtained by unreasonable search that had been established in Herring v United States (discussed here 15 January 2009). This is that evidence should be excluded if doing so would have a deterrent effect against police misconduct. At the time of the search in Davis, the search was lawful, but afterwards the law was changed by Arizona v Gant (noted here 22 April 2009). That meant that there was, at the time of the search in Davis, nothing to deter, and the evidence was admissible notwithstanding the later change in the law.

What this sort of deterrence aims at is police conduct that is in flagrant, deliberate or reckless disregard for the Fourth Amendment rights. Where the police act in good faith, or where they are merely negligent, and they violate the defendant's rights, deterrence is not called for and exclusion of the evidence would not "pay its way".

A more rights-centred approach to exclusion of improperly obtained evidence pertains elsewhere, but you knew that.

Public Defence Service costs and private bar legal aid costs

A spat looms on whether the Public Defence Service is more expensive than having legally aided criminal cases dealt with by the private bar:

Wellington, June 24 NZPA - The Government wants to save money by expanding the Public Defence Service (PDS) but Labour says the United Kingdom experience shows it is more costly.

The Government intends to increase the PDS' share of the criminal caseload from 33 percent to 50 percent.

Criminal lawyers have argued the PDS was incapable of delivering a competent and independent service, lawyers would be less experienced, clients would be pressured into pleading guilty and that it would be more costly.

Justice Minister Simon Power and the PDS disagree, saying it was working well.

Labour MP Charles Chauvel said today that the latest review of the PDS in England and Wales showed costs between 41 percent and 58 percent higher than independent lawyers providing the same services.

It also raised concerns about how PDS costs were calculated.

Mr Chauvel called for Mr Power to release full costs of the PDS.

"The Justice Minister hopes to cut legal aid costs by significantly expanding the Public Defence Service (PDS) — a public service entity — at the expense of independent lawyers providing legal aid," Mr Chauvel said.

"Labour created the PDS and continues to support its existence. But we never intended to expand it as Simon Power wants to. It was always our view, and it remains our view, that independent lawyers should provide the bulk of criminal defence work, for efficiency and equity reasons."

Mr Power said the UK report was published in 2007 and Mr Chauvel was not comparing apples with apples.

"The criminal legal market in the UK is quite different to that in New Zealand," Mr Power said.

"In the UK there is already an extensive network of private firms providing criminal services, making it difficult for their PDS to build market share.

"In New Zealand rotational case assignment will see the PDS receive cases on a regular basis."

Mr Power said expanding the PDS was not just about addressing the cost of legal aid funding.

"It was also recommended by Dame Margaret Bazley in 2009 to improve the quality of legal aid services," he said.

I emphasise the "apples with apples" bit because it raises an interesting point about how to compare the costs of the PDS with those of the private bar.

The idea used by Mr Chauvel in this media report seems to be that the relevant costs will decrease as more work is done. This supposes that the relevant calculation is costs per case.

I think that the better calculation is costs per funded hour in court by counsel appearing in a case. So, for a year, take the total costs that are publically funded for the practice, and divide it by the total publically funded hours spent by counsel from that office in court. For the private bar, average those costs per hour to get costs per hour per firm, and then compare that average to the costs per hour for the PDS office.

This way of looking at it asks how much does it cost to put a PDS lawyer in court compared to putting a publicly-funded private lawyer in court. The "apples" are court-hours. This is a neutral basis for comparison. If the "apples" were cases the comparison would be complicated by the various kinds of cases and whether the best legally available outcome for the client was achieved in each.

Bring on the holidays!

Grown-ups will remember when we used to use the pejorative term Kafkaesque. This word comes to mind on reading R v EMW 2011 SCC 31 (17 June 2011). To call the opinions "reasons for judgment" is an exaggeration. They read more like an inadequate headnote. Perhaps the unsuccessful appellant will be wondering if the judges really earned their pay on this one. It is impossible to evaluate the strength of Fish J's dissent. And while we must accept the majority's conclusions there seems to be no discernable lesson to the Court of Appeal, whose majority decision was overruled. Just a difference of opinions. I think a court of final appeal has a duty to explain itself more clearly.

The majority disagreed with the  Nova Scotia Court of Appeal majority (and apparently too with the dissenting judge in that court who seems to have accepted this point) as to whether Crown questioning of the complainant had been leading. The questioning is set out at para 80 of the NSCA majority judgment and more extensively at [118] of the dissenting judgment of Fichaud JA. At trial, after a stick drawing of a female person had been drawn by the prosecutor and the complainant had drawn a circle in the general vicinity of where the defendant had been touching her inappropriately, the questioning continued (I insert numbers for the questions):
"1. Q. Yes. What’s that part of the body on a female called?
A. Vagina.
2. Q. Vagina. And was your dad touching you on the vagina? 
A. Yes.
3. Q. And when he touched you on the vagina, was it outside of your vagina or inside of your vagina?
A. Inside.
4. Q. What part of his body was he using to touch the inside of your vagina?
 A. His fingers.
 5. Q. Was he on the inside or the outside of your clothes when he was doing this?
A. Inside.
6. Q. So you would wake up and your dad’s hand would be down your pants, and his fingers would be in your vagina?
A. Yes."

The Supreme Court majority held [9] that this was not leading questioning. But did it suggest answers or assume a state of facts that was in dispute? Q2 leads; it should be "Where was your dad touching you?" Q3 should be "Which part of your vagina was he touching?" Q5 should be "Were you wearing anything?" then, "Where was his hand compared to your clothing?" Q6 should be "When did you notice that?"

An interesting point concerns Fichaud JA's treatment of the defence cross-examination on these matters. Fichaud JA regarded the defence tactic of getting the complainant to repeat this evidence (by questions which in cross-examination are not, of course, objectionable for being leading) as defeating any objection that could have been made at trial to the Crown's leading of the same evidence. I should say that the defence cross-examination technique was flawed: it was wrong to get the complainant to repeat her evidence in chief; counsel should merely have led the inconsistent statement and then put the proposition that both were lies. But, given that counsel chose to repeat what in the hands of a prosecutor was objectionable, did this create a sort of estoppel on appeal against objection to the prosecutor's leading? I think not, because if the questions had not been allowed in chief they would not have been repeated in cross-examination.

The Supreme Court did not address this. Nor did it explain why the questions were not leading, except to say that binary questions (giving the complainant a choice between two alternatives, as in Q3 and Q5 above) did not here suggest an answer. Well, in the context of this case those questions were peripheral: the point was the allegation that the defendant was touching her vagina. Inside or outside vagina, or inside or outside of clothing, was of secondary importance. But in any event, binary questions are not necessarily acceptable, as they serve to reinforce the preceding answer, here that the vagina was touched, and that clothing was worn.

Oddly McLaughlin CJ for the majority said, on the issue of whether the questions suggested answers or assumed facts that were in dispute, that they "did not cross this threshold". There is a threshold? They were sort of leading but not quite? Is there a category of questions that are acceptably leading in a context where leading is prohibited? The majority did not say, yes, these were leading questions, but in this case the complainant was young and the prosecutor was having difficulty getting her evidence, so the judge was right to allow these questions. If that was what the majority intended, it would be controversial. Compare the remarks of the New Zealand Court of Appeal in R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [25]:
" We are conscious that there are some cases and commentators which suggest that leading questions may be allowable where young children are concerned . . . Given what is now known about the importance of using open-ended questions when interviewing children, these authorities should be treated with caution. We note, in any event, that under s 89 of the Evidence Act 2006, there is no exception to the prohibition of leading questions where a child is being questioned."

Risks, aversions, coercion, and provocation

A clutch of recent Privy Council decisions: the risks of dock identification, the Board's aversion to the death penalty, jury perception of coerced confessions, and puzzling over provocation.

R v Tido (Bahamas) [2011] UKPC 16 (15 June 2011) has some useful dicta on dock identification, application of the proviso where inadmissible evidence had been before the jury, and on the discretion to impose the death penalty in the worst cases of murder.

In Miguel v The State (Trinidad and Tobago) [2011] UKPC 14 (15 June 2011) there is an interesting point reiterated about the Mushtaq direction ([2005] UKHL 25, discussed here on 22 April 2005 and also, in the context of Wizzard [2007] UKPC 21 here on 6 April 2007). This is that there is a distinction between on the one hand denial that a statement was made at all, as where the defendant says the police coerced him to sign a confession they concocted, in which case the Mushtaq direction does not apply, and on the other hand acknowledgement that the confession was his but that it was coerced. In the latter case, where the question concerns the voluntariness of an acknowledged confession, Mushtaq does apply so that the jury must be directed to ignore it if they think it may have been obtained by coercion. This was the explanation of Mushtaq that had been given in Wizzard.

Although Mushtaq is discussed as if voluntariness were an issue on which the jury had to be unanimous, it seems obvious that unanimity is not required because each juror may find his own route to a decision on guilt, and it is only on the verdict that the members must be unanimous. So if a juror relies on the confession, that juror must be satisfied (beyond reasonable doubt - the standard applying to voluntariness here) that it was made voluntarily.

In Miguel the Board, once again, found a way to avoid upholding the death penalty. This time the reasoning focused on the interpretation of constitutional legislation.

The third decision of the Privy Council addresses provocation and fresh evidence that could be relevant to that defence: Lewis v The State (Trinidad and Tobago) [2011] UKPC 15 (15 June 2011). Provocation has been replaced in England and Wales by the partial defence of loss of control: ss 54-56 of the Coroners and Justice Act 2009[UK], and Lord Brown for the Board commented [28]:

"...whatever difficulties may arise in England and Wales from the introduction last October of the new defence of loss of control in place of provocation, at least there will be fewer problems of the kind discussed above. The courts in Trinidad and Tobago however, must soldier on. It will now be for the Court of Appeal there to consider the question of provocation in the present case. We have no alternative but to remit the matter to them."

In Lewis the problems concerned identifying conduct by the victim that could qualify as provoking the defendant to lose self-control. Mere causing loss of self-control is insufficient, because then provocation would need to be considered whenever self-defence was raised (R v van Dongen (Anthony Gerrard) [2005] EWCA Crim 1728; [2005] 2 Cr App R 632 at para 42, quoted in Lewis at [16]). In Lewis the judge had decided not to leave provocation to the jury, and the Board upheld that (although because of fresh evidence the case was remitted to the Court of Appeal). This reflects a view that what is sufficient evidence of provocation is not a question of law but is best left to the common sense of the trial judge [13, 21]. It is necessary to distinguish killing as revenge from killing as a result of loss of self-control, but the Board felt it unhelpful to try to separate out the evidence of provocation from evidence of loss of self-control [15]; they are closely connected aspects of the first limb of provocation (the subjective requirement that the defendant was provoked into losing his self-control). This first limb is regarded as "a single composite" [16], and the judge will refuse to leave provocation to the jury if he concludes that it would be perverse for a jury to find that a reasonable person would do what the defendant did.

An illustration of a controversial reliance on provocation is Weatherston v R [2011] NZCA 276 (17 June 2011), a case which was a major motivation for the repeal of this partial defence in New Zealand. Our national sense of horror is such that we have yet to replace it with anything like loss of control. The difference between Lewis and Weatherston is small (I mean here that in each the defendant claimed to have lost self-control as a result of his sensitivity to the consequences of a terminated sexual relationship), and it is likely that if the judge in Weatherston had refused to leave provocation with the jury the Court of Appeal would have upheld that decision, and, in that event, our crisis over the existence of this partial defence may well not have occurred.


Although the best barristers say very little, I, by way of contrast, can add a bit about provocation. Earlier I mentioned Attorney-General for Jersey v Holley [2005] UKPC 23 (see the entry for 5 July 2005), and it is worth calling to mind the two-stage inquiry by which courts address issues of provocation. First, what level of provocation can the defendant properly claim to have experienced? This requires considering how a reasonable person with the defendant's characteristics would have felt the provocative words or conduct. It is a mix of objective and subjective considerations. No doubt one could fairly say it requires a considerable exercise of imagination to assess. Second, given the level of provocation assessed in that way, does it exceed the level that a reasonable person ought to be able to tolerate without losing self-control? This is an objective question. These questions  can be modified when the issue is whether provocation is a live issue in the case:  is there evidence of acts or words that could reasonably be taken as requiring an exercise of self-control by the defendant, and, if so, could it reasonably be concluded that the exercise of self-control so required was beyond the ability of a reasonable person to exercise? This latter question determines whether a loss of self-control could have been through provocation as opposed to being the result of malice.

How do the new "loss of control" provisions applicable to England and Wales, referred to above, deal with these issues? On the first question, the s 55 definition of "qualifying trigger" sets the objective standards for the nature of the provocative act or words (serious violence, extremely grave circumstances, justifiable sense of being seriously wronged), and the subjective requirements are in s 54 (loss of self-control caused by a qualifying trigger). The second question, whether a reasonable person would have lost self-control if subjected to the level of provocation experienced by the defendant, appears in s 54(1)(c), which sets the standard as that of a person of the defendant's age and sex and who has "a normal degree of tolerance and self-restraint". Overall, and I only generalise because there will be a lot of interpretative issues, this legislation has the important effect of ensuring that only seriously provocative acts or words can be the basis for this qualified defence.

The unsaid unchartable universe

The more one says, the more one does not say. The universe of discourse is infinite. This is why attacks on reasoned judge-alone decisions must be constrained: a judge cannot anticipate every possible attack that might be made by imaginative appeal counsel.

It is necessary to avoid creating an "unchartable universe of appellate review", as Abella J so picturesquely put it in R v O'Brien 2011 SCC 29 (9 June 2011), writing for herself, McLaughlin CJ, Deschamps, Rothstein, and Cromwell JJ.

So, if a judge says he relies "entirely" on particular evidence, this is not to be taken to mean he was unconsciously influenced by other, inadmissible, evidence. It means the opposite: he deliberately ignored what was inadmissible.

"17. A trial judge has an obligation to demonstrate through his or her reasons how the result was arrived at. This does not create a requirement to itemize every conceivable issue, argument or thought process. Trial judges are entitled to have their reasons reviewed based on what they say, not on the speculative imagination of reviewing courts. As Binnie J. noted in R. v. Sheppard, 2002 SCC 26 (CanLII), 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55, trial judges should not be held to some "abstract standard of perfection"."

Even so, there can be room for disagreement on appeal about what the judge meant, as occurred in this case. The way to avoid this is for judges to be specific about their treatment of inadmissible evidence, even if counsel had not objected to that evidence at the trial.

Raising the bar

For a collection of articles illustrating brilliant scholarship in our areas of interest, see the Journal of Commonwealth Criminal Law, available at the website of the Association of Commonwealth Criminal Lawyers.

New complications for old

Mahomed v R [2011] NZSC 52 (19 May 2011) shows that the law of similar fact evidence is still contentious. It has recently been reformed, by calling it propensity evidence and by enacting it. Sections 40-43 of the Evidence Act 2006 [NZ] replace the common law on this topic.

In Mahomed the Supreme Court split 3-2 over what items of evidence were included as propensity evidence. The majority focused narrowly on one incident, and the minority said it was artificial to take an "atomistic" approach [73] and instead the overall pattern of events had to be looked at. The same split occurred on whether the propensity evidence was admissible: the majority said the one incident was only admissible on one of the four counts, whereas the minority said the overall pattern of events was admissible on all counts.

Further, the judges split into the same groups on whether it was appropriate to consider in detail the kinds of directions that juries should be given. The majority chose not to go into this, whereas the minority analysed the use and risks of propensity evidence, when a direction should be given and what it should say.

Conveniently, the consistency of the split between the members of the Court made it only necessary to deliver two judgments. The majority judgment of Elias CJ, Blanchard and Tipping JJ was delivered by Tipping J, and for the minority William Young J delivered the judgment of himself and McGrath J.

As the majority found there had been a miscarriage of justice arising from the way the judge had instructed the jury (he had followed a Court of Appeal ruling in this case – R v Mahomed [2009] NZCA 477 - which had held that the evidence was admissible on all counts), it had to consider whether to apply the proviso. As it happened, doing this by applying R v Matenga [2009] NZSC 18 (an approach I have criticised here, for example on 20 July 2009 and 1 January 2010) involved no greater discussion of the prosecution case that would the more conventional method for deciding conviction appeals which asks whether there was a real possibility that the error at trial affected the verdict (see Fraser v HM Advocate [2011] UKSC 24, discussed here on 26 May 2011).

The Mahomed minority's analysis of types of propensity evidence, identifying categories and sub-categories, and allowing that some instances may require swapping between categories depending on the strength of the evidence, leaves one wondering if the subject is set to become, once more, over-academicised. Complications arising from "coincidence" reasoning (eg at [51]) tend to confuse rhetoric with substance. When a prosecutor argues that either the defendant is guilty or that he is the victim of an amazing coincidence through being falsely accused by independent complainants, that rhetoric is really a reflection of the denominator of the Bayesian likelihood ratio: the low probability of getting the accusations on the assumption that the defendant is innocent.

The prosecutor's argument is sound, but it does not generate a new category of propensity evidence (see [85(a)], and [87] where Hudson v R [2011] NZSC 51 is said in footnote 50 not to be an appropriate case for coincidence reasoning). But coincidence is just another word for "low probability" and as para [59] of Hudson points out coincidence reasoning there was unnecessary as it would have duplicated ("elaborated") what the judge had told the jury. The prosecution would have said there that as the defendant had a motive, commission of the offence by someone else would by an unlikely coincidence. It comes down to the low probability of getting the evidence of motive on the assumption of innocence, and the high probability of getting it on the assumption of guilt.

There was unanimity on the relationship between the balancing exercises in s 8 and s 43 which both address probative value and prejudicial effect. In the context of propensity evidence, s 43 is the sole balancing exercise: majority at [5], minority at [66-67]. The minority do, however, accept a theoretical case of equal balance, but I think that is a misconception. The balancing metaphor in both sections does not work like a weighing of commodities. What needs to be avoided is a real risk of unfairness to the defendant, and probative evidence can "outweigh" that risk if admission of the evidence does not give rise to that risk. The Court of Appeal recognised this in  Vuletich v R [2010] NZCA 102 per Glazebrook J at [27] and Randerson J at [96], rejecting a suggestion that had been made in Stewart (Peter) v R [2008] NZCA 429 by Baragwanath J to the effect that highly probative evidence could only be inadmissible if it gave rise to a level of illegitimate prejudice that was even greater. It would have been useful for the Supreme Court to have addressed this fundamental issue in Mohamed.

Non-disclosure and trial fairness

An appellate court often has to ask whether a trial was fair. Statutory requirements for allowing conviction appeals usually include "a miscarriage of justice". What does that phrase mean for the purposes of assessing whether the trial was fair? The United Kingdom Supreme Court addressed this in Fraser v HM Advocate [2011] UKSC 24 (25 May 2011).

In this case information had not been disclosed to the defence, and had it been disclosed the conduct of the case for each side would have been different. Therefore, non-disclosure here went to the question of trial fairness [32].

The question of trial fairness is not answered by considering what verdict the appellate judges would have reached at a hypothetical trial [38]:

"One cannot, of course, avoid making some assumptions as how the trial might have been conducted if the material had been disclosed to the defence. It will always be a question of degree as to how far it is proper to go in carrying out that exercise. But the purpose of doing this is to assess the extent to which, having regard to the way the case was conducted by the Crown, the material would have weakened the Crown case or strengthened the case for the defence. It is on the case as presented at the trial that the court must concentrate, rather than the case as it might have been presented. It is not for us to speculate as to what the case might have been, much less how the jury would have reacted to it. What the Crown asks us to do, and what it persuaded the Appeal Court to do, was to consider the case on the basis that the discovery of the rings on 7 May was indicative of the appellant's guilt for completely different reasons from those advanced at the trial. In effect we were being asked to deal with the case as if we were a new jury trying the case for the first time. This is not permissible. Our task is quite different but entirely clear. As the Appeal Court said in McCreight v H M Advocate [2009] HCJAC 69, 2009 SCCR 743, para 95, it is not the court's task to decide what the outcome of the trial would have been if the trial had been conducted on an entirely different basis. We must ask ourselves whether, in the light of the undisclosed evidence, there is a real possibility that the jury at this trial would have arrived at a different verdict."

The trial would have been unfair if there was a real possibility that had the error not occurred the jury would have reached a different verdict.

The case illustrates how an appellate court should apply this test. At trial the prosecution had alleged that the defendant's guilt of his wife's murder was demonstrated by her rings that could only have been found where they were if he had removed them from her corpse. The non-disclosed evidence was that the rings had been at that location before she died.

"[39] The proposition that the appellant had returned the rings to the bathroom on 7 May was, as the Advocate Depute said in his address to the jury, the cornerstone of the Crown's case. It is clear, in view of the direction that was then given to them by the trial judge, that the jury must have concluded that the appellant put the rings in the bathroom on 7 May. This was the basis for the Crown's theory that he had obtained the rings from the deceased's dead body and had placed them in the bathroom to create the impression that she had left the matrimonial home with the intention of turning her back on the life that she had had there. This theory would have been undermined by the evidence of PC Lynch and WPC Clark. It would have been challenged by lines of cross-examination of the Crown witnesses that were never developed at the trial, and by questions that were never put to the appellant in chief or in re-examination. The point could have been made that it was improbable that, if the rings were in the bathroom on 28 and 29 April when the police visited the house, the appellant would have removed them and then chosen to return them on 7 May. The theory that he removed them from the dead body would, if the evidence of PC Lynch and WPC Clark were to be accepted, have been untenable. These and other arguments that the defence would have been able to develop would have struck at the heart of the case that the Crown presented. The trial would have been significantly different had the material that was not disclosed been available. There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crown's case that the appellant returned the rings to the bathroom on 7 May. If that were so, the jury's verdict would be bound in view of the trial judge's direction to have been different."

It was the real possibility of a different verdict that made the trial unfair.

Non-disclosure significantly affected the course of the trial. This was not a case of freshly discovered evidence, although I think the difference should be immaterial because the ultimate question is whether there is a real possibility that the omission affected the verdict.

I have suggested that all conviction appeals raise issues of trial fairness. This is because a fair trial is one where the law is properly applied to facts that are determined impartially. "Impartially" is used in a wide sense to include actual and apparent bias as well as inaccuracy. Even appeals challenging jurisdiction raise fairness in this sense, as without jurisdiction the law is not properly applied. Fresh evidence appeals also concern fairness, as the newly discovered evidence may demonstrate a real possibility that the verdict was wrong. There can be unfairness even if the verdict was not affected, where the law was not properly applied, but this was not that sort of appeal.

I have recently (7 April 2011) mentioned misuse of hypotheticals by appellate courts, and have also criticised the usurpation of the jury role by appeal judges, for example here (9 July 2009) and here (25 June 2007), and here (16 January 2006).